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By CAROLYN SKORNECK
Associated Press Writer
WASHINGTON (AP) -- The Clinton administration asked a Supreme Court justice
on Tuesday to delay a lower court order banning discrimination against
homosexuals in the military.
The emergency order, if granted, would enable the Defense Department to
implement its new policy on homosexuals, which states that recruits will not be
asked their sexual orientation but that openly declared homosexuals will not be
permitted to serve.
The Justice Department filed its request to Justice Sandra Day O'Connor,
requesting a partial stay of a U.S. District judge's order while the
administration appeals it. The aim is to limit the judge's ruling to Navy Petty
Officer Keith Meinhold, a gay sailor discharged from the military in August
1992 after he disclosed he was homosexual.
The department contended in its application that U.S. District Judge Terry
Hatter Jr. "clearly erred with respect to issues of great importance" when he
ruled Sept. 30 that the Pentagon could not deny enlistment or promotion, or
change enlistment status or duty assignment because of someone's sexual
orientation.
The Pentagon has instructed units to suspend the ban on homosexuals in the
military while it pursues the case.
"The entry of a nationwide injunction in this non-class action conflicts
with decisions of this court and numerous courts of appeals holding that an
injunction may not be broader than necessary to provide relief to the party
before the court," the Justice Department said.
The Human Rights Campaign Fund, an 80,000-member gay rights lobbying
organization, criticized the government's application as unnecessary.
"This is not an emergency," said spokesman Gregory King in Washington.
"Judge Hatter's ruling has been in effect for three weeks with no decline in
morale or unit cohesion."
Hatter, who earlier declared that the ban on homosexuals in the military is
unconstitutional, also prohibited the military from creating or keeping records
of a service member's sexual orientation.
The judge, of Los Angeles, threatened to impose fines of at least $10,000 a
day if the Pentagon fails to comply.
The 9th U.S. Circuit Court of Appeals refused on Oct. 8 to suspend the
decision while it considers the Pentagon's appeal. The appellate court is
scheduled to hear the appeal in December.
O'Connor handles emergency requests on 9th Circuit cases.
Meinhold filed a lawsuit challenging the ban on homosexuals, and Hatter
ordered him reinstated last November.
The Clinton administration had planned to implement a new "don't ask, don't
tell, don't pursue" policy on Oct. 1, but that policy has been placed on hold.
The administration's initial appeal of Hatter's ruling defended the old
policy that banned homosexuals outright.
The Justice Department's application for a stay contended that Hatter's
injunction would cause irreparable harm unless stayed pending appeal, in part
because it prevents the implementation of Clinton's new policy.
In addition, the department said the injunction interferes with the
administration of the military and "creates grave uncertainty for military
commanders" by preventing them from taking measures in response to homosexual
conduct that would be prohibited under Clinton's new policy.
The department also maintained that the injunction could be read to require
the Pentagon to search its records of 5.1 million present and past military
members and to destroy those records that pertain to sexual orientation.